Liff v. Schildkrout

Decision Date27 March 1980
Citation427 N.Y.S.2d 746,49 N.Y.2d 622,404 N.E.2d 1288
Parties, 404 N.E.2d 1288 Eric LIFF et al., as Executors of the Estate of Joseph Liff, Deceased, Appellants, v. Herman SCHILDKROUT, Respondent. Ronald GRANT, as Administrator of the Estate of Patricia Grant, Deceased et al., Appellants, v. Richard GUIDOTTI et al., Defendants, and Edgardo Macalino, Respondent. Vincent VENTURA, as Administrator of the Estate of Anthony Ventura, Deceased, Respondent, v. CONSOLIDATED EDISON COMPANY, INC. et al., Appellants et al., Defendants. GANNON PERSONNEL AGENCY, INC., Plaintiff, v. CITY OF NEW YORK et al., Defendants. (And 40 Other Actions.)
CourtNew York Court of Appeals Court of Appeals

Seymour L. Colin, P. C., New York City, for appellants in the first above-entitled action.

Robert W. De Verna, Huntington, for respondent in the first above-entitled action.

S. Mac Gutman, Jamaica, for appellants in the second above-entitled action.

Patricia D'Alvia, New York City, for respondent in the second above-entitled action.

Joseph D. Ahearn, Ernest J. Williams and Michael Majewski, New York City, for Consolidated Edison Company of New York, Inc., appellant in the third above-entitled action.

Allen G. Schwartz, Corp. Counsel, New York City (Bernard Burstein, L. Kevin Sheridan and Irving Cohen, New York City, of counsel), for City of New York, defendant in the third above-entitled action.

Norman E. Frowley and Abraham Fuchsberg, New York City, for respondent in the third above-entitled action.

OPINION OF THE COURT

JASEN, Judge.

The issues on these appeals are whether a surviving spouse, in his or her individual capacity, may maintain a common-law cause of action for loss of consortium due to death and whether loss of consortium may be asserted as an element of damages within a wrongful death action.

In Liff v. Schildkrout, the complaint alleges that Joseph Liff died on September 29, 1975 as a result of the malpractice of defendant, Dr. Schildkrout. Plaintiffs, executors of decedent's estate, served a complaint setting forth two causes of action. The first cause of action sought to recover damages for pain and suffering by the decedent prior to his death, whereas the second cause of action sought to recover damages for the wrongful death of decedent.

After issue was joined, plaintiffs made a motion seeking leave to serve an amended complaint which would set forth an additional cause of action on behalf of the decedent's widow, Hilda Liff, for damages for loss of consortium or, in the alternative, deeming the original complaint and bill of particulars amended to include a claim for the widow's loss of consortium. Special Term granted the motion only to the limited extent of permitting plaintiffs to set forth "a third cause of action on behalf of the widow for loss of consortium during the period of the decedent's conscious pain and suffering" and ordered that the bill of particulars be amended accordingly. On appeal, the Appellate Division, Second Department, unanimously affirmed the order of Special Term, and plaintiffs appeal to this court on a certified question.

In Grant v. Guidotti, the operative facts are as follows: Patricia Grant died on July 20, 1975, while under anesthesia for a Caesarean section at Long Island College Hospital. More than two years after decedent's death, this action sounding in medical malpractice was commenced against the hospital and three physicians who participated in the surgery. The action was brought in the name of decedent's husband, Ronald Grant, as administrator of decedent's estate, and decedent's two minor children to recover damages for the wrongful death of decedent, for the loss of parental guidance on behalf of the infant distributees, and for the plaintiff husband's loss of consortium due to the death of his wife.

Thereafter, defendant Macalino moved to dismiss the complaint on the grounds that the wrongful death action was barred by the two-year Statute of Limitations (EPTL 5-4.1) and that the cause of action for loss of consortium was barred for lack of a proper party plaintiff since decedent's husband did not sue in his individual capacity. Plaintiffs cross-moved for an order amending the caption of the complaint to set forth Ronald Grant's individual capacity in the action.

Special Term, in two separate orders, granted defendant Macalino's motion to sever and dismiss the complaint as against him, denied plaintiffs' cross motion to amend the caption of the complaint to reflect Ronald Grant's individual capacity, and dismissed the cause of action for loss of consortium. The Appellate Division, Second Department, unanimously affirmed the judgment of Special Term severing and dismissing plaintiffs' action as against defendant Macalino. In so doing, that court rejected plaintiffs' contentions that Ronald Grant is vested with a common-law cause of action for loss of consortium and that this cause of action is not subject to the two-year time limitation embodied in EPTL 5-4.1. Plaintiffs were granted leave to appeal to this court by the Appellate Division.

In Ventura v. Consolidated Edison Co., the relevant facts are as follows: On December 11, 1970, one Anthony Ventura died as a result of a gas explosion which occurred in lower Manhattan on that same day. Plaintiff, as administrator of the deceased's estate, then instituted this action claiming damages for wrongful death and conscious pain and suffering. After trial limited to the issue of liability Consolidated Edison Co. and the City of New York, along with other defendants, were found liable and an interlocutory judgment was entered. On appeal, the Appellate Division modified the judgment by striking the finding of liability against, and the apportionment of damages to, the City of New York and remitted the matter for a new trial on the issue of the city's liability and, after a verdict therein, to apportion damages among all defendants held liable. (Gannon Personnel Agency v. City of New York, 57 A.D.2d 538, 393 N.E.2d 915.)

Prior to the commencement of the new trial, plaintiff moved for an order permitting amendment of the complaint to include a cause of action on behalf of the decedent's widow, individually, for loss of consortium. Trial Term denied the requested relief, stating that it was "not persuaded that loss of consortium is an element of a wrongful death action." The Appellate Division, First Department, however, reversed the order of Trial Term, concluding that loss of consortium is a pecuniary injury and, thus, compensable in a wrongful death action. Defendants Consolidated Edison and the City of New York appeal to this court on a certified question.

The first issue for our resolution is whether a surviving spouse, in his or her individual capacity, may maintain a common-law cause of action in this State for loss of consortium due to death which is independent and distinct from a statutory action for wrongful death. (EPTL 5-4.1 et seq.) While we recognize the attractive nature of plaintiffs' arguments, we decline the invitation to change the law of this State and adhere to our pronouncement in Ratka v. St. Francis Hosp., 44 N.Y.2d 604, 610-612, 407 N.Y.S.2d 458, 378 N.E.2d 1027, that all causes of action arising from the death of an individual must be maintained in accordance with statutory authority.

Although the origin of the common-law notion that "(i)n a civil court, the death of a human being could not be complained of as an injury" (Baker v. Bolton, 1 Camp. 493, 170 Eng.Rep. 1033 (KB, 1808)) has been the subject of much speculation and the cited theoretical underpinnings of the rule itself have drawn serious questions as to their continued vitality (e. g., Moragne v. States Mar. Lines, 398 U.S. 375, 382-386, 90 S.Ct. 1772, 1778-80, 26 L.Ed.2d 339), there is simply no room left for debate that the common law of this State, despite numerous opportunities and forceful requests to change, does not recognize suits to recover damages for the wrongful death of an individual. (See, e. g., Ratka v. St. Francis Hosp., 44 N.Y.2d 604, 610-612, 407 N.Y.S.2d 458, 378 N.E.2d 1027, supra; Caffaro v. Trayna, 35 N.Y.2d 245, 248, 360 N.Y.S.2d 847, 319 N.E.2d 174, Kilberg v. Northeast Airlines, 9 N.Y.2d 34, 38, 211 N.Y.S.2d 133, 172 N.E.2d 526, and concurring opn., at pp. 43-44, 211 N.Y.S.2d 133, 172 N.E.2d 526; Green v. Hudson Riv. R. R. Co., 28 Barb. 9, affd. 2 Abb.Ct.App. 277; Osborn v. Kelley, 61 A.D.2d 367, 370, 402 N.Y.S.2d 463; Sorensen v. Balaban, 11 App.Div. 164, 165, 42 N.Y.S. 654.) This is not to say that a decedent's distributees are without a remedy, for a cause of action for wrongful death has been expressly authorized by statute in this State since 1847 (L. 1847, ch. 450) and is now embodied in EPTL 5-4.1. (See N.Y.Const., art. I, § 16 (right of action to recover for injuries resulting in death may not be abrogated).) Thus, the cause of action for wrongful death has been dubbed "a child of statute". (See George v. Mt. Sinai Hosp., 47 N.Y.2d 170, 176, 417 N.Y.S.2d 231, 390 N.E.2d 1156.)

Perhaps the most forthright justification for the refusal by the courts of this State to establish a common-law cause of action for wrongful death is the very existence of the statutory right. This is the clear import of our holding in the Ratka case (supra). The courts have deferred to the wisdom of the Legislature in striking the sensitive balance as to the causes of action which should be permitted to be maintained due to the wrongful death of another and also the measure of damages recoverable. (See Mobil Oil Corp. v. Higginbotham, 436 U.S....

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